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A wind farm in Oregon threatens national security and President Obama acts

This past Friday, President Obama stopped a national security threat in its tracks: We quote:

There is credible evidence that leads me [the President] to believe that Ralls Corporation (Ralls), ..., and its subsidiaries, and the Sany Group (which includes Sany Electric and Sany Heavy Industries), a Chinese company affiliated with Ralls (together, the Companies); and, Mr. Dawei Duan (Mr. Duan) and Mr. Jialing Wu (Mr. Wu), citizens of the People's Republic of China and senior executives of the Sany Group, who together own Ralls; through exercising control of Lower Ridge Windfarm, LLC, High Plateau Windfarm, LLC, Mule Hollow Windfarm, LLC, and Pine City Windfarm, LLC (collectively, the Project Companies), ..., might take action that threatens to impair the national security of the United States; …

Accordingly, under section 721 of the Defense Production Act, the President ordered Ralls to divest itself of all interest in the project and to remove all construction – including any foundations.

We knew climate change and national security were tightly connected. After all, the Department of Defense issued Trends and Implications of Climate Change for National and International Security in October of last year. There we learned that destabilization of less affluent countries as a result of the effects of climate change was a primary risk and a threat to national security. We did not learn anything about the threat posed by domestic windfarms. Then Defense Secretary Panetta accepted an award in May 2012 from the Environmental Defense Fund on behalf of the Department of Defense. He noted: “The area of climate change has a dramatic impact on national security; rising sea levels, severe droughts, the melting of the polar caps, the more frequent and devastating natural disasters all raise demand for humanitarian assistance and disaster relief”. His domestic focus was cybersecurity, not wind turbines on the Oregon plateau.

So it was something of a surprise that the Obama Administration engaged on climate change and national security by tangling with China on a small wind farm project in northeastern Oregon. But then again, who knew Naval Weapons Systems Training Facility Boardman was just a few miles down the road testing drones and the electronics on airplanes such as the EA-18G Growler? Who knew? The folks at the Committee on Foreign Investments in the United States (CFIUS) knew.

CFIUS is a little known government entity. A useful and prescient summary of the role of CFIUS in windfarm projects was published by our colleague at Steptoe & Johnson, Richard Reinis, back in 2009. In a nutshell, “The CFIUS statute authorizes the President to investigate the impact on US national security of mergers, acquisitions, and takeovers by foreign persons. If a transaction would result in an impairment of national security that could not be mitigated by agreement with the parties, the President may block the transaction or order divestiture of an already completed deal.” Mr. Reinis then demonstrates his forecasting skills and describes where CFIUS approval might be necessary: “a wind farm within observation distance of a sensitive, national security installation, or in proximity of any other significant national security site.” Fast forward three years and he could have been writing the President's order.

To return to Naval Weapons Systems Training Facility Boardman, drones and the Growler, when CFIUS knows something, it can shut things down. And it did. Back in July CFIUS issued a cease and desist order to Ralls. Ralls responded with a lawsuit challenging CFIUS authority under the Constitution and the Administrative Procedure Act. Following an agreement with the government to permit some limited preliminary construction, Ralls withdrew its suit. Then came last Friday’s order. Sany Group, Ralls’ Chinese affiliate, immediately vowed to sue.

Sany Group’s and Ralls’s fight is certain to be an uphill battle; the implementing legislation states that the President’s decisions are not subject to judicial review. See 50 U.S. C. App. 2170(e). Some have suggested that the path to success lies in a suit against CFIUS, not the President, under the holdng in the Supreme Court's recent decision in Sackett v. EPA, where final agency action entitles one to judicial review. If that is the case, we expect a further obstacle. Litigating national security is notoriously difficult. The government refuses to disclose the details of the national security question and the courts are handcuffed. We are intrigued here by the order's twiice-repeated requirement to remove any foundations. Are super-sensitive detectors suspected among the rebar and concrete? We recall the multi-million dollar fiasco of the U.S. embassy in Moscow, where bugs were embedded throughout. We do not expect ever to find out the details of the national security threat posed by Ralls, in contrast (we hope) to the threats posed by other facets of climate change.